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I. Introduction: History & Background

I. Introduction: History & Background

In May, 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect from disclosure of other newsgathering information. Wis. Stat. § 885.14. There have been no state court decisions interpreting the shield law.

Journalists in Wisconsin have a qualified privilege against testifying in both civil and criminal proceedings. This court-recognized privilege, based on both the state and federal constitutions, applies regardless of whether the journalist obtained the information from a confidential or non-confidential source.

I. Introduction: History & Background

Note: In 2011, West Virginia enacted a statutory shield law providing strong protection for reporters to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources. W. Va. Code § 57-3-10.

Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege are not as developed as they are through caselaw in other states, and there is no statutory shield law, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues have been exceedingly rare in West Virginia.

I. Introduction: History & Background

Kansas adopted a shield law in April 2010. See Kan. Stat. Ann. § 60-480 - 60-485 (2017). The case law governing actions in the state courts is poorly developed. In the federal courts, the decisions of the United States Court of Appeals for the Tenth Circuit control. These decisions recognize and apply a relatively strong qualified privilege.

I. Introduction: History & Background

New Hampshire does not have a shield law statute, although the New Hampshire Supreme Court has recognized a qualified constitutional privilege to withhold the identity of confidential news sources. There have not been any recent efforts to enact a shield law statute. There has been very little litigation involving the reporter's privilege, and we are unaware of any reporters having been jailed or fined in New Hampshire. As the First Circuit Court of Appeals recently observed in Gray v. St. Martin's Press, 221 F.3d 243, 253, 28 Media L. Rptr.

I. Introduction: History & Background

There is no statutory shield law in Vermont. Accordingly, the following consists of general guidelines for contesting news media subpoenas pursuant to Vermont's Rules of Civil Procedure and Vermont jurisprudence construing the United States and Vermont Constitutions, and Vermont common law.

I. Introduction: History & Background

The Tenth Circuit, and the federal district courts within the circuit, have recognized a qualified reporter's privilege under the First Amendment, that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.

I. Introduction: History & Background

In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure.

I. Introduction: History & Background

New Jersey originally adopted a reporter's privilege in 1933. Today New Jersey's newsperson's privilege is one of the strongest in the nation. Our Supreme Court has found "the legislative intent in adopting this statute ...as seeking to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey" In Re Myron Farber, 78 N.J. 259 (1978).

I. Introduction: History & Background

Washington State's courts have recognized, under the state's common law, a qualified confidential source privilege in both criminal and civil actions. In the modern (post-Branzburg era) the state's appellate courts have issued only three published decisions regarding reporter's privilege: Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982) ("Senear"); Clampitt v. Thurston County, 98 Wn.2d 638, 658 P.2d 641 (1983) ("Clampitt"); and State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984) ("Rinaldo").

I. Introduction: History & Background

In 1980, Congress created the Eleventh Circuit Court of Appeals from the Fifth Circuit Court of Appeals. The newly created Eleventh Circuit included Alabama, Florida, and Georgia, each consisting of three district courts. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Court held that Fifth Circuit decisions up to September 1981 would be binding in the Eleventh Circuit. Neither the Fifth nor the Eleventh Circuit, however, have produced a great deal of caselaw discussing the reporter's privilege.